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Sixth Circuit Reinstates OSHA’s Vaccine Mandate (For Now)

By Mark J. Kimzey

On Friday evening, a divided three-judge panel of the United States Court of Appeals for the Sixth Circuit issued a decision that—for now, at least—will allow the Occupational Safety and Health Administration (OSHA) to move forward with implementing its Emergency Temporary Standard on COVID-19 Vaccination and Testing (“ETS”). The ETS mandates that employers with 100 or more employees require their employees be vaccinated against COVID-19 or undergo weekly testing.

As we previously reported, the Fifth Circuit Court of Appeals initially put a legal “stay”—or hold—on the ETS in early November, calling it “unlawful” and “probably unconstitutional.” However, following a lottery conducted by the Judicial Panel on Multidistrict Litigation, cases challenging the ETS in multiple Federal courts across the country were transferred and consolidated in the Sixth Circuit for disposition. OSHA then filed a motion asking the Sixth Circuit to lift the stay issued by the Fifth Circuit.

In ruling on OSHA’s motion, the Sixth Circuit determined that the Fifth Circuit’s statutory and constitutional analyses “miss the mark.” The Sixth Circuit held that “protection against infectious diseases that present a significant risk in the workplace” is squarely within OSHA’s authority. It also declined to second-guess OSHA’s findings that COVID-19 constitutes an “emergency” which poses a “grave danger,” noting the “wealth of information” in the 153-page preamble to the ETS.

The Sixth Circuit’s opinion was authored by Judge Jane B. Stranch, an appointee of President Barack Obama. She was joined by Judge Julia Smith Gibbons, an appointee of President George W. Bush. Judge Joan L. Larsen, an appointee of President Donald Trump, dissented, arguing OSHA had not established the existence of a “grave danger” or that the ETS was “necessary.” She also maintained the ETS was beyond OHSA’s authority because of its “vast economic and political significance.”

The ETS was initially set to take effect on January 4, 2022. Shortly after the Sixth Circuit’s decision, OSHA announced that it is exercising “enforcement discretion” given the uncertainty created by the stay. To that end, OSHA will not issue citations for noncompliance with the ETS before January 10, 2022. Further, it will not issue citations for noncompliance with the ETS testing requirements before February 9, 2022, if an employer is exercising reasonable, good faith efforts to come into compliance.

Multiple parties—including 27 states—have petitioned the United States Supreme Court for review and filed emergency applications for an immediate stay of the ETS. It is expected that the Supreme Court will rule on the legality of the ETS in early 2022. Meanwhile, the emergency applications will be reviewed by Justice Brett Kavanaugh, who is assigned to hear applications from the Sixth Circuit. Justice Kavanaugh may grant the applications to stay the ETS or refer them to the full Court.

In short, the Sixth Circuit’s decision is unlikely to be the final word on enforcement of the ETS. However, employers who planned to take a “wait-and-see” approach while the legal challenges played out in the courts can no longer rely upon the protection of a stay to avoid compliance. This may or may not change in the coming weeks. As such, covered employers must be prepared to meet the January 10, 2022, compliance deadline, which, due to the holidays, is just 12 business days away.

Should you have questions about the ETS or other mandatory vaccination requirements, please contact Michael A. Airdo at 312-506-4480 or [email protected].